Weekly Comment

Is There a Middle Ground in the Voter ID Debate?

September 6, 2005

Edward B. Foley
Director, Election Law @ Moritz
Robert M. Duncan/Jones Day Designated Professor of Law
Moritz College of Law

With this installment, Election Law @ Moritz resumes its regularly scheduled series of Weekly Comments. As a new feature this academic year, from time to time we will post contributions from Guest Commentators. If you would like to submit a Guest Comment for our consideration, please email Laura Williams at electionlaw.osu.edu.

The left and the right are increasingly trading accusations in the debate over new voter ID laws, and the rhetoric is heating up. Georgia's new law has been called the new "Jim Crow," although similar measures have recently been enacted in non-Southern states like Arizona and Indiana. (Wisconsin's legislature, too, has passed this kind of law, although it has been vetoed by Governor Doyle). Defenders of such measures say opponents are willfully blind to the possibility of fraud unless a photo ID requirement is imposed.

Given that heels are digging in, it might seem naïve to search for a compromise. Yet it is imperative to do so. Election laws cannot serve their intended function unless they are accepted by both the left and the right as fair means for conducting the competition between these two political camps to win approval from the citizenry. If the right insists that a voter ID law is necessary to make the electoral process legitimate, while the left simultaneously says that the same ID law makes the electoral process illegitimate, then it becomes impossible for our society to settle upon rules of procedure for a fair contest between opposing political forces.

With that observation in mind, it is worth searching for a middle position on the voter ID issue, even if at the outset a successful conclusion to this endeavor is far from assured.

In principle, some form of identification requirement should not be objectionable to liberals. Voting is an activity that only the eligible are entitled to engage in, and so it is not unreasonable to ask citizens for some information to demonstrate their eligibility. For example, liberals do not generally object to the traditional requirements that voters provide their names, addresses, and signatures before casting their ballots.

Conservatives, however, say that these traditional requirements no longer suffice because an imposter easily could forge a signature and, in contemporary society, poll workers are unlikely to distinguish eligible from ineligible voters simply by looking at their visages. Therefore, according to these conservatives, a photo ID is necessary to show the voter's eligibility. The picture will show that the person standing before the poll worker is the same one who, according to the poll book, is registered to vote under that particular name and address.

Liberals object, however, to a photo ID requirement on the ground that it is burdensome to citizens who do not have a driver's license, passport, or comparable document. Part of the burden is cost, which can be addressed by making a valid photo ID free of charge. Another part of the burden is the difficulty of accessing locations where no-charge IDs may be obtained. That problem could be remedied by making them available at any post office, public library, or public school, as well as other social service agencies (hospitals, police stations, and so forth).

But a remaining concern of liberals is that, even if photo IDs are easily obtained, many voters will fail to bring them to the polls on Election Day. Public reminders may be issued, including public service announcements on TV. Still, some voters are forgetful, perhaps senior citizens more so than younger adults, and thus the obligation to carry an ID to the polls might serve as a barrier for these eligible citizens.

A potential solution to this problem is to break the connection with the photo requirement and the obligation to produce identification at the polls. Eligible citizens could be required to provide a photograph at the time they register to vote, and poll workers would match this photograph with the image of the person standing in front of them. Given the availability of digital photography, the photos of registered voters could be stored in electronic poll books and easily "pulled up" with a click of a computer mouse when voters sign in to vote.

These electronic photos should satisfy the anti-fraud concerns of conservatives as much as printed photos that citizens would be required to bring to the polls. After all, the purpose of a photo ID requirement - beyond the traditional requirement of providing one's name, address, and signature - is to compare the likeness of the person seeking to vote with the photograph that is linked to the name and address of the registered voter (whom the flesh-and-blood person purports to be). This function can just as easily occur by comparing the likeness of the person with the computerized photo in the electronic poll book, which was linked to the name and address of the registered voter at time of registration.

Of course, to satisfy the concerns of liberals, a requirement to provide a digital photograph at time of registration would have to address the cost and accessibility issues identified earlier. But, again, a system in which citizens could go to a wide variety of public offices (including post offices, libraries, and schools), where clerical officials would be authorized to take a digital photo of the citizen and then email it to the applicable board of election, without any cost to the citizen, would satisfactorily address these concerns. In addition, for those citizens seeking to register by mail, they could be permitted to email their own digital photos of themselves, if they conform to "passport style" specifications. In this way, nursing homes and other senior citizens centers could take "at home" digital photos of their elderly residents and email them to the board of election, without requiring these elderly citizens to travel to a post office, library, or other public building. (Another comparable approach would be to permit individuals to become a kind of "deputized notary public," trained to take the right sort of digital photo, so that other citizens could meet with any of these designated individuals whenever and wherever it would be convenient.) Moreover, as an alternative, those citizens who do not submit a digital photo at time of registration could provide the more conventional form of photo ID (like a driver's license) at time of voting, making either approach an equally available option, depending solely on which the particular citizen prefers.

Liberals might still complain that any form of photo ID requirement is unnecessary to reduce the risk of fraud and, in any event, will be ineffective if inapplicable to absentee voting. The point about absentee voting is surely a valid one. (For this reason, one wonders whether it is wise to expand the availability of at-home voting, as many states are doing.) If individuals sitting at home can vote without providing any form of photo ID, the opportunity for fraud exists even if voters who go to the polls are subject to a photograph requirement. One way around this discrepancy would be to require absentee voters to submit a photocopy of their photo ID when they mail in their absentee ballot. Or, if the digital photo proposal is adopted, absentee voters could mail with their ballot a printed copy of the digital photo they submitted as part of their registration. In the future, absentee voters might simply email a second copy of their digital photo when emailing their absentee ballots.

A liberal objection to any form of photo ID requirement is more difficult to sustain, particularly if the goal is a compromise acceptable to both sides. To be sure, the frequency of fraud at polling places that would be preventable by a photo ID requirement may be fairly low - there is a clearly a debate between conservatives and liberals on this factual point - but it is not non-existent. Liberals acknowledge the possibility of fraudulent absentee voting, saying that its risk is greater than polling place voting. But if an imposter can obtain and submit an absentee ballot, he or she can show up at a polling place purporting to be someone else. Even if the latter is more difficult, the lack of a photo ID requirement makes this deceit easier than it otherwise would be.

Thus, an acceptable compromise must take the form of a photo ID requirement that is not unduly onerous. The proposal here, to permit voters to submit an easily obtainable and no-charge digital photo at the time they register, as an alternative to having to produce a driver's license or comparable photo ID when they go to the polls on Election Day, satisfies this objective. Pursuing this proposal would enable both sides to move beyond the vituperative rhetoric that increasingly, and unfortunately, is clouding the policy debate on this topic.

Election Law @ Moritz | Professor Edward B. Foley, Director | electionlaw@osu.eduPlease note: Election Law @ Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law @ Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law @ Moritz institutionally does not represent any clients or participate in any litigation, but individuals affiliated with the program may from time to time in their own personal capacity engage in pro bono representation of clients other than partisan candidates or organizations.

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Election Law @ Moritz | Professor Edward B. Foley, Director | electionlaw@osu.eduPlease note: Election Law @ Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law @ Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law @ Moritz institutionally does not represent any clients or participate in any litigation, but individuals affiliated with the program may from time to time in their own personal capacity engage in pro bono representation of clients other than partisan candidates or organizations.

The Ohio State University | Michael E. Moritz College of Law | 55 West 12th Avenue | Columbus, OH 43210-1391 | (614) 292-2631